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Comment on Robert C. Post's Community and the First Amendment

This article responds to Professor Robert C. Post’s article, Community and the First Amendment, 29 Ariz. St. L.J. 473 (1997). Both this paper and Professor Post’s article are part of a symposium which arose out of the Conference on Free Speech and Community sponsored by the Arizona Humanities Council and Arizona State University College of Law.

Post's discussion of the relationship between community and the First Amendment uses the concepts “public discourse” and “civility rules.” Post defines “public discourse” as “the speech necessary for the formation of public opinion.” “Civility rules,” he says, are “community norms that involve speech” and that “receive legal enforcement.” Post's “most important ” conclusion is that “the First Amendment suspends the enforcement of civility rules within public discourse, but not elsewhere.”

This article argues that there is no area of so-called “public discourse” in which some or all laws involving speech are completely suspended. There is absolutely no warrant for such an exclusion in either the text or the purpose of the First Amendment. “Public discourse” is a part of the realm of constitutionally protected expression. But public discourse, however defined, is not the entire realm of constitutionally protected free expression. The Constitution is best read as according protection to all expression, except where cognizable harm is culpably caused or threatened to the rights of others, and read, as well, as prohibiting speech to be labeled as “harmful” simply because it is wrongheaded, or because it stirs the intellect or the emotions of its recipients.